Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Wednesday, June 20, 2012

When the Failing Firm Defence Fails

Posted by D. Daniel Sokol

Emily F Clark (Ashurst) and Celia E Foss (Ashurst) describe When the Failing Firm Defence Fails.

ABSTRACT: The evolution and operation of the so-called ‘failing firm defence’ in EU merger control is described. The high evidential hurdle in establishing a failing firm defence is discussed. The scope for arguments based on the counterfactual principle, even if the specified criteria for a failing firm defence are not strictly satisfied, is considered.

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